Rational Nondelegation

This article was originally published in the Harvard Journal of Law & Public Policy (Volume 47; Issue 3).

Nondelegation has risen from the dead. In the United States, the doctrine stands for the proposition that the Constitution forbids Congress from transferring excessive power to the executive branch to issue rules and make decisions with the force of law.“[T]he legislature makes, the executive executes, and the judiciary construes the law,” Chief Justice John Marshall observed in Wayman v. Southard. Nevertheless, he wrote, “the maker of the law may commit something to the discretion of the other departments.” In upholding a federal statute allowing the courts to set their rules of procedure, Chief Justice Marshall acknowledged that “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.

Despite the doctrine’s ancient lineage, the modern federal judiciary has found that inquiry so delicate and difficult as to have given up on the task. Since the New Deal, for example, the Supreme Court has never struck down a delegation for exceeding separation of powers limits. In Whitman v. American Trucking Association, theCourt unanimously upheld one of the broadest legislative delegations known: the Clean Air Act’s authorization that the Environmental Protection Agency set air quality standards “to protect the public health” with “an adequate margin of safety.” Indeed, the Court last invalidated a delegation of rulemaking power in two 1935 cases. Panama Refining Co. v. Ryan and A.L.A. Schechter PoultryCorp. v. United States even helped trigger President Franklin D. Roosevelt’s court-packing plan and the Court’s retreat from the close scrutiny of economic regulation.

Academics have largely declared the doctrine dead. Professors Eric Posner and Adrian Vermeule provocatively argue that Congress could delegate virtually all of its legislative power to the agencies. John Manning and Cass Sunstein separately observe that the values of the doctrine live on—at best—only in canons of statutory construction. Peter Schuck argues that “most broad delegations satisfy the formal requirements” of the Constitution and that, therefore, the merits of nondelegation really “turn on functional considerations” rather than constitutional ones.

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